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Canada

February 05, 2024

By Paul Hastings Professional

Back to International Employment Law

Canada

KEY DEVELOPMENTS FOR 2024

Common law notice periods

In most Canadian jurisdictions, absent an enforceable termination clause in an employment agreement which limits the employee’s entitlement to notice of termination (or pay in lieu of notice), employees are entitled to common law notice or pay in lieu. Determining the length of common law notice is based on factors such as the employee’s length of service, age and position within the company. Historically, the maximum length of common law notice periods was accepted to be a maximum of 24 months of notice or pay in lieu absent “exceptional circumstances”. However, recent decisions from the Court of Appeal in Ontario, Canada’s most populous province, have awarded employees reasonable notice periods above the 24-month maximum based on factors not previously considered to be “exceptional circumstances”. These include the employees being considered key performers and developing intellectual property that benefited the employer post-termination. As such, there is growing ambiguity in Canada as to whether its courts will continue to abide by the previous 24-month maximum award for common law notice periods.

Employers should regularly revisit the terms of their written employment agreements to ensure they reflect the requirements of current case law and legislation, and that they include enforceable termination provisions. Employers should also look for opportunities to implement updated agreements with existing employees who may have employment contracts with termination provisions no longer enforceable in Canada. This can include where the employee is offered a new position (such that signing a new employment agreement is a term of that offer) or where the employer is prepared to offer a signing bonus in exchange for agreement to the updated employment agreement. Employers should also consider including termination provisions which reflect employee entitlements greater than the statutory minimum to increase the likelihood of a court finding such a provision enforceable.

Jurisdictional issues for employees working from home

As remote and hybrid working models become the new normal in Canada, so have questions concerning how employers can manage employees seeking to work in jurisdictions other than where the employer is physically located. In Canada, most Provinces have unique legislation governing employment standards, workplace health and safety and human rights in their jurisdiction. This may impact numerous considerations in the employment relationship, including an employee’s vacation entitlements, minimum wage, record keeping and reporting obligations, and how the employee’s income is taxed. Concerns regarding workplace harassment are also becoming more complex as there has been an increase in workplace harassment where the alleged misconduct occurred virtually.

Employers should avoid a “one size fits all” approach to their employment agreements and workplace policies when they employ employees in numerous jurisdictions. Instead, employers should consider obtaining counsel from lawyers with expertise in the jurisdiction that governs the employment relationship. Employers can also consider inserting provisions in employment agreements that clarify where the employee is expected to conduct their work and limiting the ability for employee movement to other jurisdictions absent notice and consent from the employer.

Pay transparency legislation

Employers in Canada operating in federally regulated industries (such as banking, mining and telecommunications) are currently required to disclose expected salary ranges in job postings. Similar salary disclosure requirements have recently been adopted in several Canadian Provinces, with more likely to follow. These recent trends suggest legislation promoting transparency in the job application process will become the standard across all Canadian Federal and Provincial jurisdictions.

For example, in Ontario, recent legislation requires employers to disclose not only the applicable salary range in a job posting, but also whether artificial intelligence is being used in the hiring process to filter or access the qualifications of candidates. Employers should be aware of the growing trend to promote transparency in the job application process. To ensure compliance, employers should seek counsel in the jurisdiction that governs the employment relationship to confirm their job postings comply with current and anticipated legislative requirements. Employers should also consider adopting a uniform practice in all jurisdictions in which they operate within Canada to maintain equality in the job application process.

With thanks to Erin Kuzz and Christopher West of Sherrard Kuzz LLP for their invaluable collaboration on this update.

KEY DEVELOPMENTS FOR 2023

Amendments to the Competition Act

Amendments to section 45 of the Competition Act will come into force on 23 June 2023. The amendments will prohibit an employer from arranging with another unaffiliated employer wage fixing agreements that control salaries, wages, or terms of employment or “no poach” agreements to not solicit or hire each other’s employees (s. 45(1.1)).

There is a statutory defence to a section 45 violation, the ancillary restraint defence. The defence protects some agreements under the rationale that some business transactions or collaborations require restraints on competition to make them possible. For the defence to apply, the violating agreement must be: (1) ancillary to a broader agreement between the same parties; (2) directly related to and reasonably necessary for giving effect to the objective of that broader agreement, and; (3) the broader agreement considered alone must not contravene the Act (s. 45(4)).

Employers should review their contracts for any provisions which may violate section 45(1.1) of the Competition Act. In particular, employers should review their non-solicitation agreements with employees and other employers, no poach agreements with other employers, and be aware of the risk of discussing wage and compensation plans with other employers. Franchises should also review their franchise agreements for wage fixing or no poach provisions.

Litigation of vaccination policy cases

Many employers implemented workplaces policies requiring employees to become vaccinated against COVID-19. Some such policies required that employees who fail to become vaccinated (without an exemption further to the appropriate human rights legislation) would be held out of the workplace or have their employment terminated.

The litigation of the consequences of these policies (unpaid leaves and terminations) is now running its course. This involves civil court claims in relation to non-unionized employees or labour arbitration where the employees are represented by a trade union. Generally, employers have been successful in upholding policies which exclude unvaccinated employees from the workplace (provided there is a factual basis to support concern regarding the spread of COVID-19 in the workplace); however, decisions concerning the termination of employees further to such policies have not been as favourable to employers. Many large public sector employers are now rescinding their vaccination policies and have, or are considering, inviting terminated employees to return to work.

Further, initial decisions concerning requests for exemptions from vaccine mandates on the basis of religious beliefs are being released and provide broad interpretations of the types of religious beliefs in support of exemptions from vaccine mandates.

Employers that terminated unvaccinated employees should consider the evolving case law and revisit whether to reach agreements with the relevant trade unions to reinstate such employees (on appropriate conditions, such as their placement on unpaid administrative leave pending proof of vaccination, or until the employer amends its vaccination requirements). Similarly, employers are well advised to assess the likelihood of upholding terminations for failure to vaccinate where an employee sought a religious exemption from vaccination requirements.

Litigation of provisions limiting termination entitlements

In most Canadian jurisdictions (absent an enforceable term in an employment agreement which limits the employee’s entitlement to notice of termination (or pay in lieu of notice)) employees terminated without just cause are entitled to common law notice or pay in lieu (which includes all employment-related entitlements and can impact compensation elements such as bonuses or stock vesting of entitlements). Canadian courts continue to take an aggressive approach when interpreting employment agreement provisions which purport to limit termination entitlements and are prepared to strike such provisions in their entirety, even where the impugned portion of the termination provision is not directly relevant to the termination at issue.

Employers should regularly revisit the terms of their written employment agreements to ensure they reflect the requirements of current case law, and look for opportunities to implement updated agreements with existing employees. This can include where the employee is offered a new position (such that signing a new employment agreement is a term of that offer) or where the employer is prepared to offer a signing bonus in exchange for agreement to the updated employment agreement. Employers should consider including termination provisions which reflect employee entitlements greater than the statutory minimum to increase the likelihood of a court finding such a provision enforceable.

With thanks to Erin Kuzz of Sherrard Kuzz LLP for her invaluable collaboration on this update.

KEY DEVELOPMENTS FOR 2022

Mandated COVID-19 vaccinations

In some jurisdictions, the amendments to the employment standards legislation providing unpaid, job-protected leave for employees during the infectious disease emergency were extended to the end of 2021, and may remain in effect into 2022. Upon the expiration of this statutory protection, an employer who does not restore the employee to the pre-pandemic terms and conditions of employment will be vulnerable to statutory and common law claims for constructive dismissal.

In a number of jurisdictions, governments have implemented regulations requiring employees in certain professions, such as nursing and long-term care, to be fully-vaccinated against COVID-19, unless they are medically exempt from doing so. Similarly, the Federal Government has announced it will require all federally-employed public servants to be fully-vaccinated. An employee who refuses to comply with such vaccination requirements will generally be subjected to alternative measures, such as an unpaid leave of absence or the obligation to undergo rapid testing. Beyond what the regulation may require, many employers are also contemplating or implementing termination for cause as the “last resort” if an employee continues to refuse vaccination and there is no medical or other human rights based justification to do so. In addition, some jurisdictions have implemented public health directives requiring all employers (including those in the private sector) to implement policies to encourage vaccination in the workplace.

Almost all jurisdictions in Canada have implemented COVID-19 proof of vaccination programs. These programs limit public access to certain indoor venues and large gatherings to those individuals who have been fully vaccinated against COVID-19. There are a number of lawsuits challenging the constitutionality of these programs. The Federal Government has signalled it will implement a national vaccine passport for the purpose of rail and air travel, and require proof of vaccination for domestic travel purposes.

Employers should therefore continue to monitor legislative and regulatory developments in this area.

Private sector vaccination policies

Private sector employers have implemented vaccination policies in order to limit the spread of COVID-19 in the workplace. Many employers require proof of vaccination at the time of hire and as a condition thereof. If a candidate does not provide proof of vaccination, the employer will rescind the job offer. Provided the employer complies with its obligations under the human rights legislation, such requirements are likely valid and enforceable.

Most employers have also implemented vaccination policies. Some employers require an employee to be fully vaccinated against COVID-19, and provide proof thereof to the employer, as a condition of continued employment. These policies typically include any booster shots as required by public health authorises.

Some employers have implemented vaccination policies which do not require vaccination as a condition of continued employment, but seek to encourage this. Under these policies, an employee who declines to be fully vaccinated will not be terminated, but will instead be required to comply with certain restrictions in the workplace, including continuing to wear personal protective equipment even after doing so is not required by public health authorities, restrictions to use of workplace facilities, and ineligibility to attend social events.

In a unionized context, these policies may be challenged before an arbitrator on the basis they are not reasonable. An arbitrator has jurisdiction to award damages and order reinstatement of a dismissed employee. In the non-unionized context, courts may award an employee damages for wrongful dismissal if the employer cannot demonstrate the failure to comply with a vaccination policy constitutes just cause for termination.

A workplace vaccination policy must comply with human rights legislations. Some employees have challenged vaccination policies on the grounds of disability or religious belief. So far, courts and adjudicators have not ruled on this issue. As more workplaces implement vaccination policies, we are more likely to see such claims.

Employers should ensure their workplace policies comply with legislative and regulatory requirements. In particular, employers should consider whether they are legally required to have a vaccination policy in place. Whether or not legally required, employers should consider developing a vaccination policy, and also the type of vaccination policy that best meets their operational imperatives (although they should consult with legal counsel before implementing such policies).

Remote/hybrid working arrangements and the right to disconnect

After months of work from home arrangements and the Omicron wave, most Canadian employers who are able to do so have backed off return to work plans for the time being. One result of many employees continuing to primarily work from home is governments considering ‘right to disconnect’ legislation (for instance, Ontario has mandated most employers must implement a policy in 2022 but has not yet specified the required content). Although many employers remain optimistic there will be a return to the workplace in 2022, some are considering exclusive remote work arrangements or hybrid working models (with an employee spending part of the week in in the office and part remote) as an option moving forward. As a result of a move to increased remote work/permanent hybrid arrangements, many employers have had to re-evaluate the employment agreements and workplace policies to address the move to an alternate work model. Policies may be needed to address where an employee is to perform their work, IT issues, confidentiality and security of work documents kept at home and workstation ergonomics. In addition, amendments to employment agreements to formalize the remote/hybrid work arrangements and set parameters on if and when it may be revoked and on what terms, are advisable for any employer who is looking to move all or part of its workplace off-site on a permanent or rotating basis.

Employers should consider what return to work plan best meets their operational needs. They should review their operational requirements and consider whether an employee must attend an office to perform his work. If remote or hybrid arrangements are appropriate, the employer should ensure the arrangement is formalized, and appropriate policies are in place to address issues such as information technology and confidentiality.

KEY DEVELOPMENTS FOR 2021

The continuing legislative and litigation impact of COVID-19

Legislation across Canada continues to be amended to address the specific challenges of the COVID-19 pandemic. In many jurisdictions, employment standards legislation has been amended to provide for unpaid, job-protected leave for employees during the infectious disease emergency. Legislation in some provinces has also been amended to avoid the automatic termination of employees who have been temporarily laid off. The Federal Government has also amended the emergency financial benefits to employees that are not working in relation to COVID-19 (including for reasons related to childcare or lack of available work), recently signalling an intended carve out for employees who voluntarily leave Canada, thus requiring a period of quarantine upon return.

While there was initially much discussion of constructive dismissal claims associated with employee layoffs, few have come to pass. That said, as layoff periods stretch further, it is expected such claims will increase, with employees claiming termination damages on the basis that the layoff constituted a unilateral change to a fundamental term or condition of employment. We also expect to see court awards for pay in lieu of notice of termination increase, as such awards are intended to approximate the period of time it will take the terminated employee to secure comparable employment and such increased awards are seen during economic downturns.

Courts continue to undermine notice provisions

Unless an employment agreement contains effective language limiting termination entitlements, almost all Canadian jurisdictions default to common law assessments of what constitutes reasonable notice of termination, taking into account the employee's position, tenure, age, compensation, and any other factor which may impact their ability to secure alternate employment. There is a continuing trend of courts finding new and creative ways to render language purporting to limit those entitlements unenforceable, effectively stripping employers of contractual protections in favour of granting employees increased notice period awards. We expect cases to reach higher courts this year, potentially the Supreme Court of Canada, where some clarity should be provided.

Tackling the challenges of remote working

Even once a COVID-19 vaccine is widely available, some changes to the way in which work is performed may not revert to pre-COVID times. While "work from home" arrangements were initially thought to be a temporary necessity, many Canadian employers learned some employees prefer such an arrangement. Employers are contemplating what such arrangements may mean in the long term, including compensation adjustments, allowances, how to monitor productivity, and encourage team cohesiveness.

In many Canadian jurisdictions the home can be considered a "workplace" for purposes of Workers Compensation legislation, meaning employers will need to consider how to best ensure employees work safely from home, as well as how to ensure any such compensation claims are legitimate.

KEY DEVELOPMENTS FOR 2020

Harassment in the Workplace

There has been an increase in workplace harassment complaints and litigation in 2020. The Ontario Court of Appeal recently confirmed in Merrifield v Canada, 2019 ONCA 205 that there is no recognized tort of harassment, but the Court left the door open for the possibility of the tort of harassment in appropriate contexts.

Some Canadian provinces have introduced workers compensation legislation that provides employees with certain entitlements in the context of chronic mental stress claims. In Ontario, a recent tribunal decision barred a civil claim for constructive dismissal and workplace harassment, on the basis that the claim was a chronic mental stress claim. The Tribunal claim was subsequently dismissed as the matter fell within the exclusive jurisdiction of the workers' compensation board. Further clarity is anticipated from courts across Canada on the impact of mental stress workers' compensation claims in civil proceedings.

Drugs and Alcohol in the Workplace

Employers continue to navigate the impact of cannabis legalization and the use of medical marijuana in the workplace. The workers' compensation tribunals have recently introduced guidelines in Ontario, providing some clarity on the use of medical cannabis as a treatment for work-related injuries. Under the guidelines, the circumstances where medical cannabis is permitted as a treatment for a work-related injury include:

neuropathic pain;
spasticity resulting from spinal cord injury;
nausea and vomiting related to chemotherapy;
loss of appetite related to HIV or AIDS; and
pain or related symptoms in palliative care.

The obligation to accommodate medical marijuana in the workplace continues to be a challenge for employers across Canada, particularly for employees in safety-sensitive positions. Employers will need to ensure that they have robust drug and alcohol policies in place to address any particular concerns.

KEY DEVELOPMENTS FOR 2019

Making Ontario Open for Business Act, 2018

The Making Ontario Open for Business Act received Royal Assent on 21 November 2018 and came into force on 1 January 2019. This Act repeals many of the amendments to the Ontario Employment Standards Act (“ESA”), 2000 and Labour Relations Act (“LRA”), 1995 introduced by Bill 148 in 2018.

Key amendments to the ESA include repealing:

the equal pay guarantees for part-time and temporary workers;
the new scheduling restrictions that were slated to come into effect 1 January 2019;
the entitlement to two paid personal emergency leave days each calendar year; and
the increase of minimum wage to $15 per hour effective from 1 January 2019.

Key amendments to the LRA include repealing:

the right for a union to apply for a list of employee names and contact information;
the right for a union to apply for card-based certification for specified industries (home care and community services, temporary help agencies and building services); and
the mediation-arbitration process introduced through Bill 148 that provided a party with access to first contract mediation-arbitration even in the absence of any bad faith bargaining claim.

Recreational cannabis legalized in Canada

On 17 October 2018, the possession and sale of cannabis became legal in Canada. Each province has its own legislation governing how cannabis can be sold and where it can be consumed. With the legalization of cannabis has come heightened concern for employers about the impact of potential impairment in the workplace. As a result, employers throughout the country have looked to amend their existing substance use policies or implement entirely new ones to specifically address legal cannabis consumption, raising challenging issues such as accommodation of dependency and workplace random drug testing.

KEY DEVELOPMENTS FOR 2018

Ontario Provincial Passed Bill 148, the Fair Workplaces, Better Jobs Act

The Bill took effect on 1 January 2018. Changes include new scheduling restrictions, equal pay guarantees for part-time and temporary workers, an increase to the minimum wage, and the ability for a union to apply for employee contact information.

Alberta also reviewed all of its major workplace laws (employment standards, labour relations, occupational health and safety, and workers’ compensation) and implemented major changes. Other provinces will be closely watching the results, with British Columbia already having indicated that it too intends to review its labour and employment legislation.

Violence and Harassment

While #MeToo has significantly affected the media and politics, its impact will be felt in more typical workplaces as well. The combination of legislative changes made in the past few years, which provide greater recognition of and protection against violence and harassment, and changes to the social conversation, means employers will need to think carefully about their policies and practices.

Drug Testing and the Workplace

Drug testing has been a hot button legal issue in Canada for some time—in particular the ability of an employer to use random testing to deter drug and alcohol use in unionized, safety sensitive workplaces. Following a 10-year legal battle random drug and alcohol testing at Canada’s largest public transit operator, the Toronto Transit Commission’s was upheld and implemented, setting a new standard in Ontario.

KEY DEVELOPMENTS FOR 2017

Unpaid Wages

An issue that will get further scrutiny in 2017 is the issue of unpaid wages. By this we mean unpaid overtime and payment either for time spent performing work remotely (via smartphone, etc.) or for the time that does not qualify for overtime (as it doesn’t meet the hours threshold), but is in excess of the hours of work specified in either an employment agreement or an employee handbook.

Drugs and the workplace

The use of medicinal marijuana and the legalization of marijuana generally and its impact on workplaces.

Impact of the Changing Workplace Review and legal protections for atypical workers

The impact of the results of the Changing Workplaces Review and legal protections afforded ‘contingent’ or ‘precarious’ workers.

KEY DEVELOPMENTS FOR 2016

Ontario “Changing Workplace Review”

Ontario is conducting a review of the changing nature of the workplace and potential revisions to the Employment Standards Act 2000 and the Labour Relations Act 1995. The scheduled public consultations have now concluded. The Reviewers have issued their Interim Report setting out the specific issues for review and the potential amendments under consideration indicating that they intend to issue their final recommendations in Spring 2017. Many Canadian provinces, as well as the Federal government, follow Ontario legislation and common law in respect of employment and labour issues, and may also follow some or all of the recommendations.

Terminations without cause not permitted in Federal sector

Although employment issues for the vast majority of Canadian workers are governed on a province-by-province basis, employees in some sectors (such as interprovincial transport, communications, banking, and airlines) are governed under the Federal Canada Labour Code. In July 2016, the Supreme Court issued a decision reversing an earlier ruling concerning the ability of federally regulated employers to terminate employees without just cause by providing notice or pay in lieu of notice of termination. The Supreme Court’s decision confirms that non-unionized, non-managerial employees with 12 or more months of service effectively have ‘just cause’ protection from dismissal (unless that dismissal was due to lack of work or discontinuance of a business function).

Bill 132: Sexual Violence and Harassment Action Plan

Bill 132 (amendments to the Occupational Health and Safety Act) came into force in September 2016 and requires more stringent standards for workplace investigations and the ability of the Ministry of Labour to order an employer to retain an external investigator.

Expansion of accessibility and accommodation legislation

The phasing-in of the Accessibility for Ontarians with Disabilities Act in Ontario, the continued work in Nova Scotia towards accessibility legislation, and the development of accessibility legislation in the Province of Manitoba is a sign that Canadian jurisdictions will focus on becoming more inclusive of persons with disabilities. These changes include requirements to create and advise employees of support policies, make accessible information required to perform a job, establish a written process to develop individual accommodation and return to work plans, and consider accessibility needs regarding performance management, career development and advancement, and redeployment.

With thanks to Geoff Lowe, Erin Kuzz and Patrick Groom of Sherrard Kuzz LLP for their invaluable collaboration on this update.

QUEBEC

By Brittany Carson and Jessica Parent

Quebec

KEY DEVELOPMENTS FOR 2023

Quebec economy

Quebec is currently in the midst of a significant labour shortage combined with high inflation rates. According to a report from the Ordre des conseillers en ressources humaines agréés du Québec (Outil_Previsions_2023.pdf (portailrh.org)), Quebec employers expect to have to increase salaries by 4.1% in 2023. While the economy is slowing down and may even dip into a recession in 2023 according to experts, it is expected that the current labour shortage will persist in the upcoming years, driven in part by an aging population in the province.

From a labour perspective, these circumstances have created a sharp increase in labour disputes in 2022 for employers who are in the process of collective bargaining. Employees have enjoyed greater bargaining power given the ease with which employees can find alternative gainful employment. Similar challenges are expected to continue in 2023, leading to concessions from employers and the negotiation of shorter collective bargaining agreements due to the economic uncertainty.

Language of work

In 2022, Quebec enacted Bill 96, an Act regarding French, the official and common language of Québec, that aims to overhaul the Charter of the French language. While some amendments are already in force since June 2022, changes affecting all businesses operations or employees in Quebec are also set to take effect in 2023 and in the subsequent years. Of note, as of 1 June 2023, employers must ensure that employment application forms, documents relating to working conditions (i.e. employment policies, handbooks, benefit and incentive plans, etc.) and training documents are made available in French to Quebec employees if not already the case.

Employers with more than 25 employees in Quebec must be aware that they will have to comply with various “francization obligations” seeking to generalize the use of French within the business’ Quebec operations as of 1 June 2025. This requirement previously only applied to employers with 50 employees or more. From a compliance perspective and considering the significance of francization obligations, employers should consider implementing a plan as soon as possible to ensure that the use of French will be generalized within their Quebec operations by 2025.

Federally regulated private businesses should also monitor the adoption of Bill C-13, an Act to amend the Official Languages Act, to enact the Use of French in Federally-Regulated Private Businesses Act and to make related amendments to other Acts, which could be passed by the federal government before the end of 2022 or in 2023. It is anticipated that the provisions of Bill C-13 with respect to employers under federal jurisdiction located in Quebec will come into force shortly after its adoption, on a day to be fixed by order of the Governor in Council, while provisions regarding employers under federal jurisdiction located in other regions across Canada with a strong francophone presence will only come into force two years later. Similar to Bill 96, employers under federal jurisdiction will have to provide communications and documentation to Quebec employees in French, among other obligations.

Reform of the occupation health and safety regime

Provisions introduced by Bill 59, An Act to Modernize the occupational health and safety regime, which provides for an important reform of Quebec legislation on occupational health and safety (“OHS”), have continued to be rolled out in 2022, with other upcoming deadlines in the coming years on dates to be determined by the Quebec government.

As part of the interim measures in effect since April 2022, employers with 20 workers or more in Quebec should ensure that they have i) established and implemented a prevention program specific to their establishments; ii) set up a health and safety committee; and iii) designated at least one health and safety representative. For establishments with less than 20 workers in Quebec, employers have the obligation to establish an action plan to eliminate or reduce dangers to health, safety, and wellbeing of their workers, and ensure that a health and safety liaison officer is designated in the establishment.

Employers should continue to monitor developments regarding the OHS regime in Quebec, given the expected adoption of an upcoming regulation on prevention mechanisms. It is expected that this regulation will define, among other things, training obligations and specific functions of the health and safety committee, the health and safety representative and the health and safety liaison officer.

With thanks to Brittany Carson and Jessica Parent of Lavery for their invaluable collaboration on this update.

KEY DEVELOPMENTS FOR 2022

Potential reform to language laws to strengthen the use of French in the province

In 2021, the Quebec Government presented a major reform to the province’s language laws to strengthen the use of French in the province (Bill 96). Bill 96 was originally supposed to have been passed before the end of 2021 but we understand that this has been delayed.

Many additional requirements for employers are expected to result from this Bill, including the following:

The choice of language provisions in agreements will now only be valid where the signatory was presented with a French version of the document. Therefore, presenting for example an employment agreement to an employee in English only could lead to enforceability issues, regardless of the employee's language preference;
The obligation to provide documentation to employees in French will be reinforced;
Employers will now be more limited when requiring the knowledge of a language other than French (such as English) as a requirement of employment. The employer must demonstrate that he has taken the following reasonable steps : (i) assessed the actual language needs for the position; (ii) made sure that the knowledge already required from other employees was insufficient to meet those needs; (iii) has restricted as much as possible the number of positions requiring a specific knowledge of a language other than French.
Companies with 25 employees or more will now be required to register with the Office québécois de la langue française and go through a francization program. This requirement currently only applies to employers with 50 or more employees;
Introduction of French language learning services in the workplace.

Employers should be aware that amendments will be made to language laws and monitor the coming into force of such amendments to ensure compliance with all additional mandatory obligations.

Reform of health and safety legislation with the passing of Bill 59

In the fall of 2020, the Quebec Government presented a major reform to health and safety legislation, with the goal of modernizing the occupational health and safety system with respect to the prevention and compensation of employment injuries in the province. Bill 59 was passed on 6 October 2021 and the various modifications provided for in the Bill will come into force at different times between the Bill’s passing date and 1 January 2024.

The Bill will amend various laws and, amongst other things, the following amendments are expected to come into force in 2022:

Amendments to specifically provide that health and safety legislation applies to workers who are working from home and to protect the right to privacy in workers’ homes (i.e. inspectors will only access homes with worker consent except if they obtain a court order to do so);
Employers who assign workers who have suffered an employment injury to temporary work assignments will have to use specific documents which are meant to promote temporary assignments;
The CNESST will have more specific powers regarding the employer’s duty to accommodate, including ordering an employer to pay an administrative fine if the employer refuses to cooperate in the return-to-work process or to reinstate the worker where ordered to do so;
The CNESST (Quebec’s workers’ compensation authority) will have the power to offer individualized rehabilitation plans to workers before the employment injury is consolidated.

We note that the Bill grants significant rights to workers and to the CNESST while employers will mostly have to adapt to the modifications. Therefore, employers should monitor the coming into force of the Bill and be conscious of the modifications to ensure compliance with such.

Recent Court of Appeal decision regarding non-compete clauses

In Sahlaoui c. 2330-2029 Québec inc. (Médicus), 2021 QCCA 1310, the Court of Appeal reiterated that the employee’s obligation to act faithfully and honestly, as provided for in the Civil Code of Quebec, continues only for a reasonable time after the employment terminates and its intensity will vary on a case-by-case basis.

Case law in Quebec recognizes that employees who are not bound by a non-compete clause through their employment contract still have an obligation to act faithfully and honestly during their employment and following termination per the Civil Code of Quebec. However, the Court of Appeal confirmed that this obligation does not prevent employees from preparing their departures while in their prior positions, even when the employee’s intention is to start his or her own business. This affirmation is nuanced by the Court “ […] an employee who makes these preparations for departure cannot, theoretically, do so during his or her working hours or by making copious use of the tools provided by the employer in the course of his or her employment. He or she may not take advantage of the situation to plunder or hack into the employer's confidential information or files on which he or she is working, hide or misappropriate business opportunities, appropriate the employer's client lists or assets, recruit the employer's clients for his or her own benefit or for the benefit of others, genuinely and actively denigrate the employer to his or her co-workers or clientele, or any other such conduct. To do so would, of course, be unfair and is conduct that the courts will sanction.”

The Court of Appeal also reiterated that an employee who is not subject to a non-compete clause (or only a non-solicitation or extended confidentiality clause) may use the expertise, knowledge and qualities he or she acquired or developed within his or her former employer's business, including by competing with the latter. The knowledge that an employee has acquired or the skills he or she has perfected belong to the employee and can be used elsewhere, without committing a fault.

For certain positions, employers should consider including non-compete clauses in their employment contracts to provide a broader protection of their interests than what is provided for in the Civil Code of Quebec. It is important to keep in mind however that, to be considered reasonable and applicable by a court of law, such clauses must be mindfully drafted and tailored to each employee’s reality.

Recent Court of Appeal decision confirms that wage distinctions between students and other employees constitute discrimination

In Aluminerie de Bécancour inc. c. Commission des droits de la personne et des droits de la jeunesse (Beaudry et autres), 2021 QCCA 989, the Court of Appeal confirmed that the existing wage distinction between students and other employees constituted discrimination on the basis of their age and social condition under section 10 of Quebec’s Charter of Human Rights and Freedoms considering that evidence showed that the students were performing the same tasks, received the same training, made the same effort and assumed the same responsibilities as other employees of the company.

In this decision, the Court of Appeal reiterated the conditions that must be satisfied to come to the conclusion that there is discrimination per section 10 of Quebec’s Charter of Human Rights and Freedoms. There must be a demonstration, prima facie of a “distinction, exclusion or preference” related to one of the discrimination motives in the Charter. Moreover, section 19 of the Charter is meant to provide equal pay for equal work. However, the notion of “equal work” refers to equivalent work rather than identical or same work. To identify equivalent work, one must consider the required qualifications and efforts, the responsibilities assumed and the working conditions.

The Court of Appeal confirmed the decision of the Commission des droits de la personne et des droits de la jeunesse and came to the conclusion that the students employed were indeed deprived of a fundamental right, that of receiving the same treatment as other employees for the same work, solely because they belong to the “identifiable social group” of students.

This decision confirms that employers ought to be extremely cautious when offering different salaries to different groups of employees for equivalent work. To justify such a distinction, the employer must rely on a valid non-discriminatory reason (i.e. experience, seniority, years of service, merit, productivity or overtime). The conclusions in this decision could potentially apply to more than just students, but also to temporary workers, interns, etc.

With thanks to Brittany Carson of Lavery for her invaluable collaboration on this update.